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Federal Jurisdiction: Thrust and Parry (From The Litigation Manual, P 2-11, 1989, John G Koeltl, ed. -- See NCJ-117323)

NCJ Number
117324
Author(s)
T E Baker
Date Published
1989
Length
10 pages
Annotation
This paper instructs attorneys in principles and arguments that challenge the presumption against Federal jurisdiction for cases they want to bring in a Federal court.
Abstract
Before a Federal court may hear a case, the case must pass two tests: It must fall within the scope of Article III of the Constitution and within the scope of some particular jurisdiction enabling an act of Congress. Also, the presumption is against Federal jurisdiction, such that the party invoking Federal power must rebut that presumption. Using a format of 'thrust' and 'parry,' this paper presents contentions that may be presented to challenge Federal jurisdiction and arguments to counter these contentions. The contentions or 'thrusts' are that 1) the plaintiff has no standing, 2) the case is moot, 3) there is no personal jurisdiction over the defendant, 4) there is no independent jurisdiction to support joining a particular claim or party, 5) the Federal court should abstain, 6) there is no diversity jurisdiction over domestic relations cases, 7) Federal courts may not hear probate matters, and 8) a State is not a citizen for purposes of diversity and may not be sued under that jurisdiction. Other 'thrusts' are that a party, 'by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction....'; the Declaratory Judgment Act is not a grant of jurisdiction to the Federal courts; Federal law creates a duty without expressly providing a remedy and, consequently, there is no Federal question; there is no Federal question arising under either the Constitution or any Federal statute; there is no general Federal question jurisdiction; and there is a statute depriving the Federal court of jurisdiction.

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